Public Trust

Question 1

Public Trust - General Concept

Answer 1

• used as a doctrine to limit the power of the government to transfer public property
• government can’t privatize public property
• core historically + conceptually is navigable waters

Question 2

Common Examples of Public Trust

Answer 2

Not always, but usually:

• highways
• airspace
• navigable waterways
• streets
• public parks, squares, and beaches
• drinking water
• wildlife

Question 3

Public Trust and Takings

Answer 3

• public trust is sometimes used as an argument against worrying about takings - idea is that individual has notice that private rights stop where the collectively decided upon public interest starts and regulations of a certain type might be imposed

Question 4

Illinois Central R. Co. v. Illinois - Core Concept

Answer 4

• illustrates a particularly strong version of public trust doctrine - even the legislature does not have the power to transfer public assets into private hands or otherwise violate the public trust doctrine b/c the state doesn’t have that power to begin with
• if such transfer occurs, state can revoke the transaction w/o violating the Takings Clause or other constitutional protections for private property

Question 5

Illinois Central - Facts

Answer 5

• specific statutes involved, but basically Illinois legislature gave IC submerged land (outer harbor) under navigable waters - granted in 1869 w/ idea that IC would develop the outer harbor
• Illinois then revokes this grant four years later, even though IC was supposed to own in perpetuity -> IC says this is unconstitutional, Attorney General says legislature never had the right to transfer the land in the 1st place

Question 6

Illinois Central - Articulation of Public Trust

Answer 6

The state has no power to transfer trust lands except:

(i) to the extent that selling small parcels promotes the public interest therein OR
(ii) the disposal does not substantially impair the public interest in the lands and waters remaining

Question 7

Illinois Central - Decision

Answer 7

• SCOTUS says the outer harbor is inherently public property - the government can’t divest themselves of it except under narrow circumstances (small enough that it doesn’t get in the way of public trust)

Question 8

Public Trust - State vs. Federal

Answer 8

• SCOTUS has clarified in subsequent decisions that the public trust doctrine in IC was more about state common law (past practice shows Congress does have the power to give public lands to private parties)

Question 9

Mono Lake

Answer 9

• California public trust case
• deals w/ q of how much water needs to be left for the lake under the public trust doctrine (limits extent to which people can take water from private streams that feed into it

Question 10

Variants of the Public Trust - Scope

Answer 10

• navigability may be broader, public trust may extend to other streams
• public trust may extend to waters over privately owned lands
• public trust uses include navigation, fishing, commerce, and now recreation

Question 11

Variations of the Public Trust - Strength of Review

Answer 11

• depends on state
• Massachusetts - presumption against grants that has to be overcome by clear statement of legislature’s intent to grant, including a recognition of the existing public use
• Wisconsin: “close look” by the court, using balancing test (impact on public use, etc.)
• California - grants of public trust pass absolute title when they promote navigation and commerce, but if not, then the grant gives title subject to the public trust